2013 (12) TMI 41

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.... which Revenue has not come in appeal. But when the matter was remanded back for re-quantification, the Revenue has again raised the issue which was decided by Commissioner (Appeals) in the first round. In these circumstances, I find that it is proper to take up both stay application and appeal together and dispose of the same instead of causing further inconvenience to the Appellant. Therefore, after waiving the requirement of predeposit of dues, the appeal itself is taken up for disposal. 2. The facts of the case can in brief are as follows. Appellant is a 100% EOU manufacturing granite slabs. They export their products. They also supply part of their products to other 100% EOU and have hardly any clearances to domestic tariff area. ....

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.... DTA, the deemed exports also have to be taken into account and not physical exports alone. Thus the Hon'ble High Court of Gujarat has concluded that 'clearances made by one 100% EOU to another 100% EOU which are' deemed exports are to be treated as physical exports for the purpose of entitling refund of unutilized Cenvat Credit contemplated under the provisions of Rule 5 of the Cenvat Credit Rules, 2004. Since the issue involved in this appeal is on the same analogy, the above decision is squarely applicable to this case. 8. Accordingly the following order is passed. ORDER The appeal is allowed and the impugned order stands modified to the extend that the differential amount of refund involved in the appeal shall be granted if ot....

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....s 2004 and notification 5/06-CE (NT). The issue now being agitated had reached finality and it could not be re-agitated in the second round of litigation. Further, he argues that on the merits of the issue, Hon. Gujarat High Court has already given a decision holding that the goods supplied to 100% EOU is to be treated as export. Further, in the light of observation of Gujarat High Court in the case of Essar Steels Ltd. Vs UOI 2010 (249) ELT 3 (Guj.) that aspects of rebate, refund etc. of goods and services intended to be given should not be denied. The relevant para-41.2.9 of the order is reproduced below :- 41.2.9?Rule 27 permits a Unit or Developer to import or procure from the Domestic Tariff Area all types of goods, without payment ....